Friday, February 19, 2016

Greater Scrutiny of Pregnancy Bias: The Question Should NOT Be Choosing Between A Job And Pregnancy

The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII, the basic civil rights law against workplace bias, to prohibit sex discrimination on the basis of pregnancy. The PDA asserts: (1) that pregnancy bias is a form of discrimination based on sex and (2) that female workers who become pregnant must be treated the same as other workers “not so affected but similar in their ability or inability to work.”

On March 25, 2015, the U.S. Supreme Court, in Young v.United States, sought to clarify the second section of the PDA. Specifically, the Supreme Court held that, even if an employer’s policies are not intended to discriminate against women on the basis of pregnancy, it may still violate the PDA if “the employer’s policies impose a significant burden on pregnant workers, and . . . the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden[.]”

In support of its holding, the Supreme Court fashioned a three-part framework for showing that an employer’s refusal to accommodate was likely the result of intentional bias. First, the employee must offer proof that: she is in the protected group (i.e., those who can become pregnant); she asked for a workplace accommodation when she could no longer complete her normal duties; the employer refused to do so; and the employer provided an accommodation for others who are just as limited in their ability, or unable, to do their work temporarily. Second, the employer must show that its workplace policy was not biased against pregnant employees, but that it had a neutral, business-related reason for its policy. Third, the employee must show that, even if the employer’s policy was not intended to be biased, the workplace policy puts a “significant burden” on pregnant employees, and the reason for the policy is “not sufficiently strong” to justify that burden. Thus, the result in Young is a sort of hybrid analysis: judging intentional bias on the one hand and negative impact on female employees on the other.

Following the Supreme Court’s decision in Young, on June 25, 2015, the Equal Employment Opportunity Commission (EEOC) issued guidance confirming that failure to accommodate pregnant employees may expose employers to Americans with Disabilities Act of 1990 (ADA) claims based on temporary disabilities caused by pregnancy. Notably, the ADA prohibits discrimination based on “disability,” a definition required by the ADA Amendments Act of 2008 (ADAAA) to be “interpreted in favor of broad coverage of individuals.” The EEOC has previously issued guidance stating that “[d]isabilities caused or contributed to by pregnancy . . . [are], for all job-related purposes, [to] be treated the same as disabilities caused or contributed to by other medical conditions[.]” Thus, the EEOC interprets the ADAAA’s expanded definition of disability to include pregnancy. The EEOC’s June 2015 guidance will likely result in greater employer oversight of how they accommodate pregnant women. This guidance also emphasizes that employers may be subject to disparate impact claims to the extent that an employer policy, such as eligibility for and/or restrictions on leave, disproportionately impacts pregnant workers.